Articles

In 1980, the Costigan Commission, headed by Frank Costigan QC, was established by the Australian Government to investigate criminal activities associated with the Painters and Dockers Union. The union had a militant history, and the commission was seen as politically motivated; however, its enquiries effectively revealed the so-called “bottom of the harbour” tax evasion schemes. Despite the controversy surrounding the Commission’s establishment, it effectively led to the introduction of a National Crime Authority which established a standing crime commission. Premised on the political platform of a fight against serious and complex organised crime, the standing commission of inquiry was given incredible powers of coercion. It was this background, and the subsequent influx of both special and standing commissions of inquiry, which began the rapid erosion of the privilege against self-incrimination.

In the decision of State of Queensland v Allen, the Court of Appeal took the opportunity to clarify whether statements by witnesses and solicitors file notes of conferences with them were investigative reports within s 30(2) of the Personal Injuries Proceedings Act 2002. Arguably, the Court construed the Act to protect solicitor/client communications as opposed to third party communications although that methodology does not appear on the face of the legislation. Further, the approach taken by the majority in relation to medical reports gives rise to some uncertainty in respect of a statement taken from a respondent who is a medical practitioner, although the Court was at pains to point out this was not the case again on the basis that solicitor/client communications would not ordinarily be “medical reports” although why this is so remains unclear.

Foetal alcohol spectrum disorder, or FASD, refers to a range of conditions resulting from pre-natal exposure to maternal drinking. Various cognitive and physical impairments are associated with a diagnosis of FASD. The impairments associated with FASD have implications for the way that lawyers take instructions from defendants and witnesses, for framing arguments and submissions on criminal responsibility and defences, suggesting appropriate bail conditions and for submissions on sentence. International research suggests that about two per cent of the population have FASD and around 60% of those with FASD come into contact with the criminal justice system. This article reports on a survey of Queensland lawyers about their understanding of FASD and how they deal with FASD in their legal work.

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